Is Work Same as Jail? D.A., 2 Judges Look at Penal Code

CLAREMONT — Is volunteering one's services as a licensed general contractor on renovation projects, such as the design of a patio, a substitute for serving a day behind bars?

The answer to that question may determine whether Claremont Police Chief Dexter Atkinson violated the law by allowing a convicted drunk driver to perform community service instead of serving time in jail.

Atkinson has been on paid administrative leave since last month, when City Manager Glenn Southard referred the matter to the district attorney's office. The inquiry centers on the police chief's decision to let Claremont contractor John Barber perform 180 days of community service in lieu of 180 days in jail imposed after his third conviction for drunk driving.

A transcript of Barber's sentencing last September indicates the judge told Barber's attorney that Claremont police could choose to have him work off his sentence during the day while allowing him to spend his nights at home, as permitted by state law.

No Evasion Intended

Barber said the transcript supports his contention that he and Atkinson did not attempt to evade the sentence handed down by the court.

"That's what I've been saying all along--I'm not lying," Barber said. "I think I've done what this man, the judge, told me to do, or what we all left the courtroom thinking we were supposed to do."

The question to be decided over the next month by a deputy district attorney and two municipal court judges is whether the work performed by Barber fulfilled legal requirements. According to the judge who sentenced Barber, that decision will require a precise interpretation of the Penal Code.

Last September, Barber received a sentence of 120 days in jail--as mandated by state law for a third conviction within a seven-year period--from Pomona Municipal Court Judge Robert C. Gustaveson. That led a North Orange County Municipal Court judge to sentence Barber to an additional 60 days in jail for violating his probation from a 1985 drunk driving conviction.

Social Connections

Both judges granted a request from Barber's attorney to have him serve his time in Claremont's municipal jail. Barber said Atkinson had him serve his sentence by working eight hours a day overseeing building renovations at the Police Department.

Atkinson later wrote letters to both courts, attesting that Barber "had fulfilled his community service." The controversy surrounding Atkinson questions whether he illegally permitted Barber, with whom he has socialized and played golf, to perform community service when Barber had been sentenced to jail time.

But according to a transcript of Barber's sentencing in the Pomona court, the judge told Barber's attorney, Clark Shacklett, that state law permitted Claremont police some discretion over how he would serve his time, including the option to have him work during the day and go home at night.

"If they want to work him and let him go after eight hours, that's fine with me, as long as it is (equivalent to) 120 days in jail," Gustaveson told Shacklett. "We didn't discuss anything about how they were going to use him. I would want them to have him at least do enough time in jail so it is one day. . . . Sometimes they will work them all day and let them go home at night. That doesn't concern me, as long as it's 120 days in jail."

Gustaveson, now a Pomona Superior Court judge, said last week that he could not recall Barber's case, one of thousands of drunk driving cases over which he presided in his 15 years on the Municipal Court bench. He said the Penal Code allows custodial agencies such as local police departments several methods under which a person in their custody may work off a jail sentence.

One of the alternatives permitted by the Penal Code is for the prisoner to perform "labor on public works and ways," which the law defines as "manual labor to improve or maintain public facilities." Each day of such work equals one day of jail time, the code states.

"A day in jail is whatever the Legislature says it is," Gustaveson said. "If the person who is the jailer interpreted the Penal Code right, that's fine."

Barber said he spent 180 days supervising the design and construction of projects to relieve overcrowded working conditions at the police station. These included subdividing office space by building new walls and designing a patio to provide officers a place to smoke, which is no longer permitted in the station, Barber said.

"I'd say 90% of it was design and consultant work and 10% of it was manual, the manual part of it being going out and picking up materials," Barber said. "Most of it was coordinating with subcontractors."

But although Barber was working on a public facility, a judge will have to decide whether his design and contracting work qualifies as "manual labor" under the law, Gustaveson said. The judge, who is no longer involved with case, said the code's definition is not explicit in this area.